Each undersigned party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business (including, without limitation, computer programs, technical drawings, algorithms, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial, customer and product development plans, forecasts, strategies and information), which to the extent previously, presently or subsequently disclosed to the Receiving Party is hereinafter referred to as “Proprietary Information” of the Disclosing Party. Notwithstanding the foregoing, nothing will be considered “Proprietary Information” of the Disclosing Party unless either (1) it is or was disclosed in tangible form and is conspicuously marked “Confidential”, “Proprietary” or the like, (2) it is or was disclosed in non-tangible form and identified as confidential at the time of disclosure, or (3) the nature of the information and the manner of disclosure are such that a reasonable person would understand it to be confidential.
In consideration of the parties’ discussions and any access of the Receiving Party to Proprietary Information of the Disclosing Party, the parties hereby agree as follows:
1. The Receiving Party agrees (i) to hold the Disclosing Party’s Proprietary Information in confidence and to take reasonable precautions to protect such Proprietary Information (including, without limitation, all precautions the Receiving Party employs with respect to its own confidential materials), (ii) not to divulge any such Proprietary Information or any information derived therefrom to any third person, (iii) not to make any use whatsoever at any time of such Proprietary Information except to evaluate internally its relationship with the Disclosing Party, (iv) not to copy or reverse engineer any such Proprietary Information and (v) not to export or reexport (within the meaning of U.S. or other export control laws or regulations) any such Proprietary Information or product thereof. Without granting any right or license, the Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (i) is or becomes (through no improper action or inaction by the Receiving Party or any affiliate, agent, consultant or employee of the Receiving Party) generally available to the public, or (ii) was in its possession or known by it without restriction prior to receipt from the Disclosing Party, or (iii) was rightfully disclosed to it by a third party without restriction, or (iv) was independently developed without use of any Proprietary Information of the Disclosing Party. The Receiving Party may make disclosures required by law or court order provided the Receiving Party provides the Disclosing Party with as much advance notice of such disclosure as possible and uses diligent reasonable efforts to limit disclosure and to obtain confidential treatment or a protective order with respect to such disclosure.
2. Immediately upon a request by the Disclosing Party at any time, the Receiving Party will turn over to the Disclosing Party all Proprietary Information of the Disclosing Party and all documents or media containing any such Proprietary Information and any and all copies or extracts thereof. The Receiving Party understands that nothing herein (i) requires the disclosure of any Proprietary Information of the Disclosing Party or (ii) requires the Disclosing Party to proceed with any transaction or relationship.
3. The Disclosing Party shall retain all right, title and interest in and to the Proprietary Information and all patent, copyright, trade secret, trademark and other intellectual property rights therein. No license or conveyance of any such rights to the Receiving Party is granted or implied by this Agreement or by the disclosure of any information hereunder.
4. The Disclosing Party warrants that it has the right to disclose its Proprietary Information in accordance with this Agreement. Except for the foregoing warranty, Discloser makes no representations or warranties, express or implied, as to the accuracy, completeness or other characteristics of the Proprietary Information, and neither Disclosing Party nor its officers, directors, employees, stockholders, owners, affiliates or agents shall have any liability to Receiving Party resulting from Receiving Party’s use of or reliance upon the Proprietary Information.
5. The term of this Agreement will commence on the Effective Date and expire three (3) years thereafter; provided that either party may terminate this Agreement prior to expiration by giving written notice to the other party. Notwithstanding anything to the contrary herein, each party’s rights and obligations under this Agreement shall survive any expiration or termination of this Agreement for a period of three (3) years thereafter.
6. The parties to this Agreement are independent contractors and nothing herein shall be construed as creating an association, agency, teaming, joint venture, partnership, fiduciary, or other business relationship. The Receiving Party acknowledges and agrees that due to the unique nature of the Disclosing Party’s Proprietary Information, there can be no adequate remedy at law for any breach of its obligations hereunder, which breach may result in irreparable harm to the Disclosing Party, and therefore, that upon any such breach or any threat thereof, the Disclosing Party shall be entitled to appropriate equitable relief, without the requirement of posting a bond, in addition to whatever remedies it might have at law. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be illegal, invalid or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect. This Agreement shall be governed by the laws of the State of California without regard to the conflicts of law provisions thereof. This Agreement supersedes all prior discussions and writings and constitutes the entire agreement between the parties with respect to the subject matter hereof. The prevailing party in any action to enforce this Agreement shall be entitled to costs and attorneys’ fees. No waiver or modification of this Agreement will be binding upon a party unless made in writing and signed by a duly authorized representative of such party and no failure or delay in enforcing any right will be deemed a waiver.